ARCHAEOLOGICAL EXCAVATIONS PTY LTD · ABN 51 145 485 347
Terms and Conditions
1. DEFINITIONS
In these terms and conditions:
"Archaeological Excavations", "ArchEx", "we", "our" and "us" means Archaeological Excavations Pty Ltd ABN 51 145 485 347.
"Claim" means any claim, demand, action, or proceeding.
"Confidential Information" means, in relation to a party (for the purposes of this definition, the discloser):
a)information relating to or used by the discloser, including know-how, trade secrets, ideas, marketing strategies and operational information;
b)information concerning the current or proposed business affairs (including financial information, products, services, customers and suppliers) or property of the discloser; and
c)other information which is disclosed, communicated or imparted by or on behalf of the discloser in circumstances importing an obligation of confidence or which a reasonable person would have realised was of a confidential nature,
but does not include information that is in the public domain, or comes into the public domain other than as a result of a breach of these Terms, or that was already known to the recipient at the time of disclosure.
"Consequential Loss" means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profit, loss or corruption of data, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity.
"Customer" and "you" means a person or organisation acquiring, or seeking to acquire, Services from us.
"Deliverable" means any report, plan, documentation or other material to be delivered by us to you in connection with the performance of the Services as specified in the fee proposal.
"Deposit" means any deposit payable by the Customer to us for the provision of the Services and Deliverables as described in clause 8 and in a fee proposal.
"Fees" means the fees payable by you to us for the provision of the Services and Deliverables under these Terms and any relevant fee proposal.
"GST" means any tax, levy, charge or impost implemented under the GST Law or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Law.
"GST Law" has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Insolvency Event" means in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to a party or any substantial part of its assets; or in relation to an individual or partnership, an act of bankruptcy, or entering into a scheme of arrangement with creditors or the occurrence of any event that has substantially the same effect as any of the above events.
"Intellectual Property Rights" means any intellectual property rights subsisting anywhere in the world, including:
i.rights in relation to copyright (registered or unregistered), inventions (including patents, innovation patents and utility models), Confidential Information, technical information and know-how, registered and unregistered designs, registered and unregistered trade marks and circuit layout rights, topography rights, and rights in databases;
ii.any similar rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may at any time subsist;
iii.any application and the right to apply for registration for any of the above; and
iv.any right of action against any party in connection with any of the above.
"Invoice" means an invoice issued by Archaeological Excavations to the Customer indicating the amount to be paid by the Customer.
"Law" means all laws and legally-binding codes of practice, guidelines or standards issued by relevant regulators or authorities or industry bodies.
"Loss" means any loss or damage whatsoever and howsoever caused and includes, without limitation, financial loss, injury to or death of any person, damage to any real or personal property (including intellectual property) of any person, loss of income or profits, actual or prospective liability to any third party, and any legal costs arising from a Claim (on a full indemnity basis).
"Order" means any order for Services placed by the Customer with Archaeological Excavations, in a form reasonably acceptable to Archaeological Excavations.
"Personnel" means the directors, officers, employees, agents and contractors of the relevant party.
"Fee Proposal" and "fee proposal" mean a fee proposal, estimate or quote provided by Archaeological Excavations to you for the provision of the Services and Deliverables.
"Registered Aboriginal Party" has the same meaning as under the Aboriginal Heritage Act 2006 (Vic).
"Scheduled Dates" means the dates stated in the Order for Archaeological Excavations to provide the Services and Deliverables.
"Services" means excavation, reporting, artefact cataloguing or other services as specified in the relevant Order or otherwise provided to you by us.
"Terms" means these terms and conditions.
2. THESE TERMS
a)Unless we otherwise agree in writing, these Terms are the only terms and conditions which apply to the provision of the Services and Deliverables by us and you agree that these terms and conditions will in all circumstances prevail over any other document or other terms, including any terms and conditions put forward by the Customer.
b)These Terms may be amended or replaced by us from time to time, however any amendment or replacement will not apply to any accepted fee proposal unless the parties otherwise agree in writing.
3. FEE PROPOSAL
a)All requests for Services and Deliverables by you must be made to us in writing and must provide us with all information that we reasonably require, including:
i.the Services and Deliverables required by you;
ii.the proposed site plans (including engineer's designs);
iii.copies of all consents required by applicable Laws in relation to the Services at the site;
iv.the site assessment and survey report (including the soil report); and
v.all other information reasonably requested by us from time to time.
b)You must ensure that all information provided to us in respect of any request for Services is correct, accurate and up-to-date.
c)We may require inspection of the relevant site prior to providing you with a Fee proposal and you must co-operate fully with us (and our personnel) in respect of such inspection, including the provision of all necessary access to the site.
d)Once we consider that we have sufficient information, we may issue you with a Fee proposal for the Services and Deliverables specified in the fee proposal.
e)You must immediately notify us in writing of any changes to the information provided by you in connection with a fee proposal, including any change that may influence the delivery of the Services or the Deliverables.
f)You will be taken to have accepted the fee proposal from us, and will immediately be bound by these Terms, if you:
i.accept the fee proposal in writing (including electronically, such as through a secure link we provide) or orally, or where acceptance is reasonably implied in the circumstances;
ii.accept the provision of the Services or Deliverables; or
iii.pay the deposit to us in accordance with clause 8.
g)Once the fee proposal has been accepted under clause 3 f), it will be deemed to be a valid and binding Order.
4. VARIATIONS AND CANCELLATIONS
a)You may request a variation or request cancellation of an Order and we will not unreasonably refuse such a request.
b)If we agree to a variation of an Order, we may revise the fee proposal and may reasonably increase the fees payable by you for providing the Services and Deliverables to you for that variation. We will notify you of any significant increase before we agree to the variation, so that you have an opportunity to withdraw your request for the variation if you wish.
c)If we agree to a request by you to cancel an Order, you will be liable for any Loss or expense incurred by us in respect of that Order (including payment for any services ordered by us from our contractors or third parties relating to that Order) that we cannot reasonably avoid.
5. PROVISION OF SERVICES AND DELIVERABLES
a)The Services and Deliverables to be provided by us to you under these Terms are set out in the fee proposal.
b)We will provide the Services and Deliverables to a high standard.
c)You must provide us with any information and co-operation we reasonably request in order to provide the Services and Deliverables.
d)We will endeavour to provide the Services and Deliverables to you as close as possible to the Scheduled Dates. Time is not of the essence under this clause 5.
e)We may deliver the Services and Deliverables by separate instalments (in accordance with any delivery schedule set out in the fee proposal).
f)Decisions about a cultural heritage management plan, permit, consent or other approval are made by the relevant Registered Aboriginal Party, First Peoples - State Relations, Heritage Victoria or other authority, not by us, and we do not guarantee any particular decision, condition or timeframe.
6. SITE
a)You must ensure that:
i.you provide adequate supervision and site-specific induction of our personnel, through on-site staff or contractors who have the requisite knowledge and qualifications to provide such training and supervision. You are responsible for ensuring that our personnel are safely directed in relation to their conduct on your site including but not limited to loading and unloading material and performing any other Services for you;
ii.access to your site is safe, unimpeded, and continuous;
iii.any pre-commencement or preparation works which are specified in a Fee proposal or Order are completed prior to the commencement of the Services;
iv.the working platform is firm, stable and safe with no height restriction for the required equipment;
v.there are adequate water and site amenities for us to perform the Services; and
vi.you comply with all Laws and council regulations for your operations at the site, including the Services to be performed by us and have all necessary consents required by Law.
b)You acknowledge that it is your responsibility to locate and advise us prior to the commencement of the Services, of all utility services and fixed property (including but not limited to water, sewer, drainage, power and telephone services) at your site. We will take reasonable care not to damage any utility service or fixed property that we are aware of.
c)If you fail to comply with any of the above site requirements, or if for any reason, we consider your site to be unsafe to carry out the Services, we will endeavour to consult and work with you to rectify any issue. However we may, without liability to you, suspend the provision of the Services until the relevant issue is resolved to our reasonable satisfaction.
7. DELAYS
If any delay in the provision of the Services or Deliverables is caused as a result of:
i.your failure to comply with the site requirements set out in clause 6;
ii.other tradespeople or third parties working or operating at your site impeding or preventing the provision of the Services or Deliverables;
iii.the site, in our reasonable opinion, being deemed unsafe for us to carry out the Services,
we may charge you for actual Loss incurred by us as a result of the delay (acting reasonably).
8. DEPOSIT
If an upfront deposit is specified in the fee proposal, you must pay the deposit at the time specified in the fee proposal (or at another time as agreed in writing by the parties). If any deposit amount is not paid within the required timeframe, we may, without liability to you, delay the provision of the Services until the amount is paid.
9. FEES
a)Unless otherwise agreed in writing we will invoice you for the Fees for the provision of Services and Deliverables in accordance with these Terms and the fee proposal.
b)We may by notice in writing to you reasonably change the Fees provided in the fee proposal:
i.if a variation to the Services to be provided by us is requested by you and agreed to by us;
ii.if additional services are required due to the discovery of hidden or unidentifiable difficulties, which are only discovered on or after the commencement of the Services, or are required as a result of discussions with any relevant Registered Aboriginal Party about the Services;
iii.if additional services are required because Aboriginal cultural heritage or historical archaeological material is found on your site; and
iv.in the event of increases to us in the cost of labour or materials, which are beyond our reasonable control.
c)Unless otherwise agreed in writing, you are responsible to pay directly all applicable prescribed fees that are due to First Peoples - State Relations, any Registered Aboriginal Party or any similar organisation in connection with the Services or the Deliverables. We may suspend the Services until you have made any such payment to such an organisation, if the payment is overdue.
d)If we change the Fees under clause 9(b)(ii), (iii) or (iv) and you do not agree to the change, you may cancel the Order by notice in writing within 14 days of our notice, without any cancellation charge. You need only pay for the Services provided, and the costs reasonably incurred by us, before the cancellation, and clause 4(c) does not apply.
10. PAYMENT AND DEFAULT
a)Unless otherwise agreed in writing by us (including where otherwise identified on any Invoice issued by us), all Invoices are payable in full by the Customer within 14 days from the date of Invoice. Invoices will be rendered at the times specified in the fee proposal, or if not specified in the fee proposal may be rendered monthly in arrears.
b)You agree to bear all costs reasonably incurred by us in collecting any overdue amounts from you, including reasonable collection agency fees, legal fees and court costs.
11. INTEREST AND POSSESSION OF GOODS
a)If a party is late in paying an amount due under these Terms to the other party, the other party may charge the defaulting party interest on the overdue amount at the rate provided by section 2 of the Penalty Interest Rates Act 1983 (Vic), plus 3%. Such interest will compound daily from the date payment was due until the date of payment in full of the overdue amount.
b)If we are in possession of any goods or other items of which you are the owner or to which you are otherwise entitled to possession, you grant us a lien over those goods or items and we may retain possession of such goods or items until you have paid us in full for any amount owing to us (whether or not the payment relates specifically to those goods or items). This lien does not extend to Aboriginal cultural heritage (including Aboriginal objects and Aboriginal ancestral remains), historical archaeological material, or anything else whose ownership, custody or management is governed by Law, which we will deal with only as the Law requires.
12. GST AND OTHER TAXES AND DUTIES
Notwithstanding any other clause in these Terms, to the extent that any supply made under or in connection with these Terms is a taxable supply (as defined by the GST Law), the Customer must pay to Archaeological Excavations, in addition to the consideration provided for under these Terms for that supply (unless it expressly included GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay to Archaeological Excavations the additional amount at the same time as the consideration to which it is referable. The Customer is responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the provision of Services.
13. COMPLIANCE WITH LAWS
The parties will comply with all applicable Laws and maintain and enforce effective policies and procedures in relation to such applicable Laws in connection with these Terms. Nothing in these Terms requires either party to act contrary to the Aboriginal Heritage Act 2006 (Vic), the Heritage Act 2017 (Vic) or any other Law, and our compliance with such a Law (including reporting any Aboriginal cultural heritage or historical archaeological material that is found) is not a breach of these Terms.
14. CONFIDENTIALITY
a)The parties acknowledge that one may provide the other with Confidential Information for the purposes of these Terms and any relevant Order.
b)A party will not, without the prior written approval of the other party, disclose or use the other party's Confidential Information, other than to the extent required to perform the Terms.
c)A party will not be in breach of its obligations under this clause, in circumstances where it is legally compelled to disclose the other party's Confidential Information.
d)Each party must take reasonable steps to procure compliance by each of its personnel to whom the other party's Confidential Information is disclosed, with the obligations under this clause as if it applied directly to them.
e)Upon termination or expiry of these Terms, each party must promptly return to the other party (or if not capable of return, take reasonable steps to erase or destroy) the other party's Confidential Information in its possession or control.
f)You agree that we may give information about you, the site and the activity to First Peoples - State Relations, any Registered Aboriginal Party, Heritage Victoria, a council or another authority where it is needed to provide the Services or is required by Law.
15. INTELLECTUAL PROPERTY RIGHTS
a)All Intellectual Property Rights:
i.in the Deliverables or any other material, thing or documentation issued to the Customer by us under these Terms will remain the property of Archaeological Excavations; and
ii.created or developed during the course of or in connection with the provision of the Services or the Deliverables will vest immediately on creation in us.
b)Upon final payment of all Invoices under the Fee proposal the Customer will have a perpetual, irrevocable, non-exclusive, royalty free, non-transferable licence to use and reproduce the Deliverables (and permit its personnel to do so), for the purpose of the Customer having the full benefit of the Services under these Terms. For so long as any payment of an Invoice under the fee proposal is overdue, you must not use or reproduce the Deliverables in any way.
16. WARRANTIES
Each party warrants that:
i.it has full power and authority to enter into and perform its obligations under the Terms; and
ii.all information it provides to the other party is true and correct to the best of its knowledge, information and belief.
17. EXCLUSION OF LIABILITY – REGULATORY DIRECTION
We will not have any liability to any party (including the Customer) because of any act or omission of us or our personnel, where such act or omission is specifically required by a direction to Archaeological Excavations or such person from a regulatory body purporting to exercise its functions and powers.
18. LIMITATION OF LIABILITY
a)Statute law in Australia, for example the Competition and Consumer Act 2010 (Cth), may impose guarantees in relation to the supply of goods and services to the Customer which cannot be excluded, restricted or modified except to a limited extent. If any such law applies, then to the fullest extent permitted by the law, our liability in relation to a breach of such a guarantee is limited to any one or more of the following in our sole discretion:
i.in the case of any goods, the replacement or repair of the goods, or the supply of equivalent goods, or the payment of the cost of repairing or replacing the goods or supplying equivalent goods; and
ii.in the case of any services, the supply of the services again or the payment of the cost of having the services supplied again.
b)To the extent permitted by law, each party and its employees, agents and subcontractors expressly exclude:
i.all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity; and
ii.any liability for any Consequential Loss incurred by the other party in connection with these Terms or any Services or Deliverables or in connection with the use, inability to use, or results of the use of any Services or Deliverables, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
c)Each party's maximum aggregate liability to the other party (except the Customer's liability to pay for the Services and Deliverables) in tort (including negligence), contract or otherwise is limited to the amount paid by the Customer under these Terms in the 12 months immediately before the liability arose, except that this maximum will not apply in relation to liability for:
i.the negligence of the first party or its employees, agents or subcontractors;
ii.fraud or fraudulent misrepresentation by the first party or its employees, agents or subcontractors; or
iii.any liability which because of applicable statute cannot be limited or excluded.
d)Neither party will be responsible to the other party for any loss, liability, claim or damage arising from circumstances beyond the reasonable control of the first party.
e)Each party's liability under or in connection with these Terms (including in negligence) will be reduced by the extent, if any, to which the other party or its personnel contributed to the relevant loss, liability or damage.
f)Each party must take reasonable steps to mitigate any loss, liability or damage it suffers as a result of a breach by the other party of the Terms or the negligence of the other party or the other party's personnel.
g)These terms do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territory law which by law cannot be excluded, restricted or modified.
h)This clause 18 will survive termination or expiry of these Terms and remain in effect.
19. INSURANCE
a)Each party must effect and maintain at its own expense the following insurance policies until the completion of the Services and for at least 3 years after that:
i.public liability insurance with a policy value of not less than $20,000,000;
ii.worker's compensation (as required by Law); and
iii.any other insurance required by Law.
b)Archaeological Excavations must also effect and maintain at its own expense professional indemnity insurance with a policy value of not less than $10,000,000 until the completion of the Services and for at least 3 years after that.
c)Upon request, each party must provide the other party with evidence of the existence and currency of the relevant insurance policies.
d)Clause 19(a)(i) does not apply to a Customer who is an individual acquiring the Services other than in the course of carrying on a business.
20. TERMINATION
a)Either party may terminate these Terms immediately, in the event the other party:
(i)suffers an Insolvency Event; or
(ii)is in material breach of these Terms and fails to remedy the breach within 14 days of receipt of the party's notice to do so.
b)Neither party may terminate these Terms except as expressly stated in these Terms.
21. GENERAL
a)Any notice or other communication in relation to these Terms must be in writing and be hand delivered or sent by prepaid ordinary post to the last notified address of the relevant party, or sent by email to the last notified email address of that party.
b)If any provision of these Terms is unenforceable, such unenforceability will not affect any other provision or any other part of these Terms.
c)These Terms do not create a relationship of employment, agency, partnership or joint venture between you and Archaeological Excavations. The relationship is at all times one of principal and independent contractor.
d)Any waiver by a party of strict compliance with any provision of these Terms will not be effective unless in writing and signed by an authorised officer of that party.
e)Neither party may assign any of its rights or liabilities under these Terms without the prior written consent of the other party, which will not be unreasonably withheld.
f)These Terms may be executed in any number of counterparts which when taken together, constitute one instrument.
g)These Terms are governed by the laws of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts having jurisdiction in that State.
h)Except as provided in clause 2(b), any amendment to these Terms has no force or effect unless effected by a document signed by the parties (including electronically).
i)These Terms express and incorporate the entire agreement between the parties concerning its subject matter, and all the terms of that agreement.
j)Each party must execute any document and perform any action necessary to give full effect to these Terms, whether before or after performance of these Terms.
k)Any provisions of these Terms that are expressed to or by their nature survive, will survive the expiry or earlier termination of these Terms and continue in effect.
l)Neither party will be liable for any failure to comply with these Terms to the extent the failure is due to circumstances beyond its reasonable control, provided that the party notifies the other party of those circumstances as soon as practical and takes all reasonable steps to mitigate the effects of those circumstances.
m)To the extent of any inconsistency between these Terms and a fee proposal, the fee proposal will prevail.
Last Updated: October 2026.
Edition 2026-10. SHA-256 of this text: 3248083f3049ebc76adad9ef4d672424ede27b4c79e344ad3f39b22c1879f5f1
Every edition: October 2026 (this page) · June 2023